DECEMBER 12, 1994
At the end of October a huge red, white and blue envelope from a group called U.S. Term Limits arrived in the mail. "Fellow American," it began, " most members of Congress view their job as guaranteed for life. The average rate for incumbent congressmen over the last decade has been almost 98 percent. why? Because it is almost impossible for a challenger to come anywhere near matching an incumbent's campaign war chest!... term limits is the greatest movement of the twentieth century!"
That was last month. But the Supreme Court ignores the election returns; and on November 29, the justices will hear arguments in U.S. Term Limits v. Thornton, which asks them to decide whether the federal term-limits initiatives that twenty-two states have passed since 1992 are consistent with the U.S. Constitution. (Nine of the initiatives were passed this year.) There's a faintly academic quality to the argument, since the speaker- designate of the House of Representatives has rashly promised to propose a term-limits amendment to the U.S. Constitution within the first 100 days of his regime. Nevertheless, if the justices strike down the state initiatives, as every other federal court has done, the clamor for a constitutional amendment will be hard to resist.
The standard legal argument against state term-limits initiatives is a wooden syllogism: the Constitution specifies three qualifications for membership in Congress: age, U.S. citizenship and residence in the relevant state. In 1969 the Supreme Court concluded that Congress could not refuse to seat Adam Clayton Powell because the Framers of the Constitution thought Congress had no power to alter the list of qualifications. Therefore, state term-limits initiatives are unconstitutional because they expand the list of qualifications beyond the constitutional floor.
Stated this mechanically, the argument begs all the relevant questions. The central concern of the Powell decision was the danger that Congress might entrench itself by manipulating its own membership requirements. But this casts no light on the validity of term-limits amendments to state constitutions, since they've been ratified, since the progressive era at least, not by ordinary legislators, but by the people themselves. So the real question is a heady matter of democratic theory: Are state term-limits amendments, ratified by the people, an expression of popular sovereignty in its purest form? ("Due to an acute outbreak of democracy," says the answering machine at U.S. Term Limits, "all of our lines are busy.") Or are term-limits amendments, in fact, anti-democratic because they limit the choices of voters in particular elections?
The best case for term limits as the apotheosis of plebiscitary democracy appears in a brief filed by Roderick Hills of the University of Michigan. The people of Arkansas, argues Hills, are authorized to enact term limits by Article I, Section 2 of the U.S. Constitution, which says that "the House of Representatives shall be composed of Members chosen every second Year by the People of the several States" and by the Seventeenth Amendment, which provides for the popular election of U.S. senators. The Arkansas plebiscite on term limits, which the people are free to repeal whenever they like, was itself a popular election in which the voters decided that they no longer wanted to be represented by long-standing incumbents.
But Hills's argument falters when it comes to defining "the people." Term- limits amendments are ratified by a majority of voters across the entire state. But federal law requires congressional elections to be held in single- member districts. Therefore, it's conceivable that the majority of voters in an Arkansas congressional district may be yearning to re-elect a trusted incumbent, only to find their hands tied by a term-limits amendment that they themselves opposed. Elections for the Senate, by contrast, are statewide, so perhaps term limits are constitutional for the Senate but not for the House.
Once you concede that state term-limits amendments can frustrate the wishes of local majorities, it's easier to trot out the Federalist Papers on the importance of popular sovereignty. ("The true principle of a republic is that the people should choose whom they please to govern them," and so forth.) The only way of recasting term limits as a boon for democracy is to resort to esoteric arguments about how people aren't really free to vote against incumbents, because of the corresponding loss of pork for their districts. But these arguments--which the briefs discuss as classic "prisoner's dilemmas" and which Dan Rostenkowski cast in less academic terms during his last campaign--are especially unconvincing since the voters ignored them on November 8.
The justices will be on solid ground if they strike down term limits on the theory that no temporary majority--in a federal or state legislature or state plebiscite--should be able to add qualifications for office that thwart the will of the voters in each district. So the only hope of persuading the Court to uphold term limits is to argue that they aren't formal disqualifications after all, because they don't always work. Robert Bork, for example, has filed a quirky brief arguing that term-limits amendments don't actually impose term limits; they're "merely" procedural restrictions that prohibit incumbents from appearing on the ballot, but leave them the faint hope of being re-elected by write-in votes.
Although this argument has the virtue of perversity, it is hard to reconcile with the preamble to the Arkansas amendment, which says cheerfully that "the people of Arkansas, exercising their reserved powers, herein limit the terms of elected officials." Since the explicit purpose, and almost certain effect, of term-limits amendments is to prevent incumbents from winning elections (some states don't even have a write-in option), recasting them as "mere" procedural regulations would be a triumph of form over substance. And even if the more formalist justices, Antonin Scalia and Clarence Thomas, are inclined to accept Bork's argument, they'll still have to confront the claim that keeping incumbents off the ballot violates the First Amendment rights of political parties to nominate whomever they choose.
Finally, there's the argument that term limits are a valid regulation of the "manner" of elections under the elections clause of the Constitution, which says that the "Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." But this theory would give Congress ultimate control over the tenure of its members, even though the Framers specifically deprived Congress of that power. All this suggests that we can look forward to a rare glimpse of the justices' muscles if the Court rouses itself to strike down most of the state term-limits provisions before June. The new speaker, then, will be obliged to fulfill his Contract with America by shepherding a federal term-limits amendment through Congress; and whatever Congress proposes, the state legislatures will enthusiastically approve. It seems likely that the federal term-limits amendment--like the Seventeenth Amendment, requiring popular election of the Senate, and the Nineteenth Amendment, granting women the right to vote--will be swept into the Constitution on a wave of populist indignation that began with initiatives in the states.
There is, however, an important difference. The Seventeenth and Nineteenth Amendments broadened the suffrage and increased the choices of local majorities. A national term-limits amendment would do the opposite. If the new speaker is determined to amend the Constitution, why not give states the option of adopting term limits, rather than imposing them across the board? (Something like "the people of the several states hereby have the power to impose limits on their representatives' tenure in office" would do the trick.) The current of popular favor could then run pure, and all fifty laboratories of democracy could accept or reject term limits as they pleased. For newly elected Republicans whose views have evolved over the past few weeks, an optional amendment is their only hope.